CASE NO. 4128 CRB-03-99-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 30, 2000
PATRICK C. FORD
The claimant was represented by Charles Douthat, Esq., Jacobs & Jacobs, 700 State Street, Third Floor, New Haven, CT 06511.
The respondents were represented by Ralph A. Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.
This Petition for Review from the September 16, 1999 Finding and Award of the Commissioner acting for the Third District was heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the September 16, 1999 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trial commissioner erred by failing to reach a conclusion with regard to the issue of permanent partial disability, by failing to find that the claimant had reached maximum medical improvement, by awarding undue temporary partial and temporary total disability benefits, and by finding the care of Dr. Martin to be compensable under § 31-294d C.G.S. We affirm the trier’s decision, and remand for further findings on the issue of permanent partial disability.
The claimant suffered a lifting injury to his stomach wall and a left inguinal hernia on November 17, 1994, which injuries were accepted as compensable by a voluntary agreement approved on November 21, 1997. The claimant’s treating physician, Dr. Yavorek, twice attempted to surgically repair that hernia. On September 22, 1997, the claimant was back at work lifting a heavy item when he felt a pain in his left groin and noticed a bulge in that area. Dr. Yavorek saw the claimant, and performed a third hernia operation on November 17, 1997. The claimant testified that he still suffered from intense left inguinal pain after the surgery. Dr. Yavorek released the claimant to light duty on January 16, 1998, whereupon the respondent Carpenter Chapman terminated his employment after he attempted to return to work.
The respondents paid the claimant compensation and medical benefits following his third left inguinal hernia. At the time he was released for light duty, Craig Powell, the respondents’ insurance adjuster, told the claimant that he had reached maximum medical improvement, and said that the respondents would continue to pay him weekly benefits as advances against his permanent partial impairment award. Dr. Yavorek had estimated on December 12, 1997 that the claimant had a 40% permanent partial incapacity of his left abdominal wall and inguinal area. The claimant testified that Powell never told him that he was entitled to make a claim for temporary partial disability benefits pursuant to § 31-308(a) upon the submission of job search forms, so even though he looked for work, he did not keep records of his attempts to find suitable employment. Powell could not recall whether he had mentioned a possible § 31-308(a) claim, but confirmed that he had not received a letter from Dr. Yavorek indicating that the claimant had reached maximum medical improvement.
In fact, both Dr. Yavorek and an examiner hired by the respondents, Dr. Meyer, had diagnosed the claimant with a 40% permanency rating, but neither stated that the claimant had reached maximum improvement. Dr. Yavorek had referred the claimant to the Yale Pain Management Center for treatment, and believed it more appropriate that they determine whether his condition had stabilized. The respondents filed a Form 36 on May 12, 1998 stating that the claimant would be switched from temporary total disability to specific indemnity benefits because he had reached maximum medical improvement. They attached the two aforementioned medical reports. The Form 36 was approved on May 12, 1998, as the claimant—who was then unrepresented by counsel—did not file an objection. Although Powell testified that he could not locate the abdominal wall or inguinal area on the list of rated body parts in § 31-308(b), he continued to make a total of $13,853.90 in advances to the claimant through September 23, 1998.
In September 1998, Dr. Yavorek found that the claimant continued to suffer from inguinal pain, along with other symptoms in his testicular region. The doctor again performed left inguinal surgery on October 22, 1998, in consultation with Dr. Martin, a New Haven urologist. Dr. Yavorek believed that the surgery was reasonably medically necessary, and related to the original compensable injury. He stated that the claimant would be totally disabled post-surgery for three or four months. Dr. Martin, who participated in the surgery, also stated that it was necessitated by left groin pain stemming from the two prior left inguinal surgeries. However, the insurance adjuster declined to pay the bills of either surgeon because the procedure had not been previously authorized.
After considering these and other facts, the trier concluded that the claimant’s October 1998 surgery was caused either directly or indirectly by the compensable injury, and found that he was totally disabled from October 22, 1998 onward as a result of his injury and that the costs of the operation should be paid by the respondents. He ruled that the Form 36 approved on May 12, 1998 should be reopened because the claimant had not yet reached maximum medical improvement as asserted by the respondents, and accepted the claimant’s explanation that he looked for work, but failed to keep records of his job searches in reliance on Powell’s representations. Thus, he found that the claimant was entitled to temporary partial incapacity benefits following his release for light duty work in February 1998. The trier also ordered the respondents to pay the reasonable bills of the Yale Pain Management Center. The respondents now seek review of that decision.
We begin our analysis by recounting our standard of review on appeal. When this board examines the decision of a trial commissioner, we inspect his factual findings with considerable deference. Rodrigues v. American National Can, 4043 CRB-5-99-4 (July 26, 2000); Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999). The trier’s fact-finding authority entitles him to determine the weight of the evidence presented and the credibility of all testimony offered by lay and expert witnesses, even if such evidence has not been expressly rebutted. Rodrigues, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may not alter the commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed facts. Id. We do not retry cases on appeal, and we cannot disturb the trier’s legal conclusions unless they are the product of an incorrect application of the law to the facts or of an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Rodrigues, supra.
The respondents’ arguments concerning the commissioner’s failure to find that the claimant reached maximum medical improvement constitute a textbook example of a factual issue that depends completely upon the trier’s assessment of the medical reports and physicians’ testimony. Bennett v. Federal Express Corp., 4023 CRB-4-99-4 (May 22, 2000); Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 167, 3150 CRB-1-95-8 (May 2, 1997). On one hand, Drs. Yavorek and Meyer both rated the claimant with a 40% permanent partial disability of his left lower abdominal wall inguinal area prior to the May 12, 1998 filing of the Respondents’ Form 36. In the majority of cases, a permanency rating is provided after a claimant has reached maximum medical improvement, though there are frequent exceptions. See Messier v. General Dynamics Corporation/Electric Boat Division, 12 Conn. Workers’ Comp. Rev. Op. 157, 158, 1495 CRB-2-92-8 (April 26, 1994) (doctor issued 20% impairment rating as of a certain date, but thought the patient had not yet reached maximum improvement). On the other hand, neither doctor had said that the claimant’s recuperation had reached a plateau, and Dr. Yavorek clarified on July 22, 1998 that it was difficult to tell whether the claimant had reached maximum improvement yet, as his pain symptoms continued to evolve. Claimant’s Exhibit B.
A few months after Dr. Yavorek’s July 1998 opinion, the claimant’s chronic discomfort led him to undergo surgery that the doctor described as having been necessitated by the original surgeries, “which did not alleviate his pain and may have been contributing to his pain due to the presence of  prosthetic material [that was used in previous surgeries].” Id., report of November 3, 1998. After this foreign material was removed, a pair of hernia defects were repaired using sutures rather than mesh. Based on this evidence, it was hardly unreasonable for the trier to conclude that the claimant had not reached maximum medical improvement prior to his October 1998 surgery. These reports indicate that his condition continued to deteriorate between February 1998 and October 1998. We are not in a position to disturb such a finding on review. Bennett, supra. Thus, the trier permissibly found that the claimant had not reached maximum improvement prior to his October 1998 surgery, and correctly ruled that he was not then entitled to a permanency award. McCurdy v. State, 227 Conn. 261, 268 (1993).
The respondents’ challenge to the commissioner’s award of § 31-308(a) benefits to the claimant from February 5, 1998 through October 22, 1998 (with credit for one week that the claimant unsuccessfully tried to perform a light duty job at Sears) is also mainly an attack on impressions that the trier drew from the evidence, rather than his application of the law to the facts. A partially incapacitated claimant is entitled to benefits under § 31-308(a) when he is able to do some work but unable to fully perform his customary work, resulting in a loss of income. Rodrigues, supra, citing Shimko v. Ferro Corp., 40 Conn. App. 409 (1996). Although the statute does not require a claimant to perform work searches in order to qualify for benefits, this practice has been imported from unemployment compensation law as a means of demonstrating the unavailability of light duty employment. Id., 414. Other evidentiary means may also be used to illustrate that same circumstance, however. Rodrigues, supra; Mikula v. First National Supermarkets, 3754 CRB-3-97-12 (May 11, 1999).
The trial commissioner found that the claimant looked for light work within his capacity following his termination by the respondent, and that he admitted to periods of self-employment the “extent of which is not clear.” Findings, ¶ H, as amended by ¶ 14 of Respondents’ Motion to Correct. The trier accepted the claimant’s assertion that he failed to keep a catalogue of his job searches because he did not think he needed to do so, given what the insurance adjuster had told him regarding entitlement to permanent partial impairment benefits, and because he was unaware that he could make a claim for § 31-308(a) benefits. Findings, ¶ P. We find no error in the trier’s analysis of the effect that Powell’s representations had on the claimant, insofar as they support the reasonableness of his explanation for not having work search records. We have stated that a trial commissioner may rely upon the testimony of a claimant in determining whether he was ready and willing to work as per § 31-308(a), but unable to find employment in that locality. Mikula, supra. Thus, it would not be accurate to say that the trier invoked the doctrine of equitable estoppel to relieve the claimant from having to meet the statutory criteria in proving entitlement to temporary partial disability benefits. Rather, the basic concept of reliance aided the trier in establishing the existence of a relevant subordinate fact: the reason for the absence of job search documentation.
As for the uncertain periods of the claimant’s self-employment referred to in the Motion to Correct, there is no evidence in the record that he collected any money from pursuing such endeavors during the period we are concerned with here. The claimant testified that he was unable to make any money starting a lawnmower repair business out of his garage in September 1998, nor was he able to profit from his brief involvement with a franchise called “Pop A Lock.” January 13, 1999 Transcript, pp. 23, 45-49; compare Heene v. Professional Ambulance Service, Inc., 3743 CRB-6-97-12 (Jan. 8, 1999) (amounts actually earned in private cleaning business must be accounted for when calculating § 31-308(a) benefits). The details of the claimant’s business ventures are not such that we must infer that he passed up viable employment opportunities in favor of those activities, either. The record supports the commissioner’s finding that, outside of the week that the claimant worked for Sears fixing lawn tractors in April 1998, he remained unemployed throughout the period of his temporary partial disability. We have no ground upon which to override the commissioner’s decision that the claimant’s testimony was credible. Therefore, we must accept the trier’s findings regarding his entitlement to § 31-308(a) benefits.
The respondents’ challenge to the compensability of Dr. Martin’s care, including surgery he performed, once again requires us to examine the factual inferences that the trial commissioner drew from the medical evidence. Dr. Martin was the claimant’s urologist. As noted above, he collaborated with Dr. Yavorek, the claimant’s treating physician, in performing the October 22, 1998 left inguinal surgery. The claimant had been referred to him by Dr. Yavorek due to persistent left-sided groin pain. Dr. Martin’s function was to determine if there was a urologic reason for this chronic pain. Deposition, 5. At his initial examination of the claimant in September 1998, he opined that the claimant’s pain and discomfort was of an unknown etiology, though he had previously been worried that it might be a result of complications from the hernia repairs. Id., 8. He explained that he proceeded to participate in the claimant’s surgery the following month because “we had a patient with chronic pain of unclear origin and our thought at that point was to identify any potential urologic abnormality or potential explanation for his discomfort and to fix it. . . . It was done to basically try to get everything done at once . . . .” Id., 16. Unfortunately, the surgery did not seem to alleviate the claimant’s discomfort, which led Dr. Martin to agree that the urologic conditions addressed during the surgery had not been the source of his pain. Id., 21-22.
The respondents conclude from this testimony that none of Dr. Martin’s care, including the surgical procedures he performed such as the removal of a testicular hydrocele, can be deemed compensable. They reason that, since Dr. Martin could not establish a causal connection between the services he provided and the claimant’s compensable injury, his treatment falls outside the scope of § 31-294d. However, Dr. Martin explained that his participation in the surgery was in the nature of an exploratory procedure, and that it was intended to identify and correct any potential urologic sources for the claimant’s pain. Id., 31-32. As the procedure involving the hydrocele did not help to soothe the claimant’s chronic discomfort, Dr. Martin came to believe that his pain was indeed due to his persistent left inguinal condition. Id., 35.
Setting aside the fact that the doctor thought the hydrocele probably resulted from inflammation caused by previous surgeries; Id., 27; it is apparent that Dr. Martin became involved in this case, and performed surgery on the claimant, solely because his patient was experiencing pain that both Drs. Martin and Yavorek now relate directly to the claimant’s compensable inguinal hernias. It was not unreasonable for Dr. Yavorek to refer the claimant to Dr. Martin in an effort to identify the root cause of his continuing pain, as the primary job of a doctor is to provide relief for his patient. Later, it became apparent that the source of the pain was indeed the compensable injury. The commissioner was thus within his authority when he found Dr. Martin’s treatment compensable, and we must affirm his decision regarding this factual question on appeal. Vanstraten v. Hartford Courant, 3999 CRB-8-99-3 (March 23, 2000).
Finally, we address the trial commissioner’s failure to make a permanent partial impairment award. Because he did not find that the claimant had reached maximum medical improvement prior to surgery, and the evidence showed that the claimant was totally disabled following surgery, he did not make a permanent partial impairment award. In doing so, he also avoided ruling on an issue that both parties had raised for decision at the formal hearing: whether the claimant would be entitled to a specific indemnity award for a permanent partial disability of the stomach, or whether his abdominal wall injury fell outside the list of scheduled benefits under § 31-308(b). Both parties agree that they would like this case remanded for a resolution of that issue. We accede to that request, and note for the benefit of the trier that there have been recent cases in which similar issues have been raised. Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 819 n.17 (1999); Shanklin v. UTC/CTVIP, 3537 CRB-5-97-2 (June 22, 1998). Of course, the claimant will still have to demonstrate that he has reached maximum medical improvement before the trier may issue a permanency award.
The trial commissioner’s decision is accordingly affirmed, and the matter is remanded for a determination on the pending matter of permanent partial impairment.
Insofar as any compensation due under the trier’s decision remained unpaid pending the resolution of this appeal, interest is awarded pursuant to § 31-301c(b).
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.